Drug testing guidelines issued to Colo. employers after Amendment 64

drug testing employees. To help businesses understand the legalities, Mountain State Employers Council has developed a guideline for employers to help them develop policies about Amendment 64, something local Chamber of Commerce leaders say will be helpful for employers. “We have a lot of employers who have a lot of questions about this because it’s not as clear cut as it with being under the influence of alcohol,” said Diane Schwenke, executive director of the chamber. “We know that if we were to have a certain level in your bloodstream of alcohol, you’re under the influence. We don’t have that same matrix to use with marijuana.” Here are the MSEC’s four points to remember:

• An employer, whose supervisors are trained in reasonable suspicion of drug use and who require an employee to undergo a urinalysis, saliva or blood test after documenting signs and symptoms of drug use, will have a stronger chance of surviving a legal challenge if the employer terminates that employee. (This assumes that the worker tests positive for Tetrahydrocannabinol [THC], the active ingredient in marijuana).

• Colorado’s legal off-duty activities law (CLODA) prohibits employers from terminating employees for legal, off-duty conduct. Exceptions, however, are provided in law.

• If a worker is in a safety-sensitive occupation, employers may have a stronger legal basis to terminate employees who test positive for marijuana. A worker who is impaired through the use of marijuana in these occupations creates risk for the employer and other workers, which can fall under CLODA’s exceptions.

• CLODA refers only to employees, not to job applicants. Thus, pre-employment drug screening remains a lawful practice and may continue to be conducted by employers.